CAROL M. FARWELL, Plaintiff-Appellant, v. SENIOR SERVICES ASSOCIATES, INC., ASTA CARE CENTER OF ELGIN, and DANIEL G. PARSONS, Defendants-Appellees.
No. 2-11-0669
Appellate Court of Illinois, Second District
May 22, 2012
2012 IL App (2d) 110669
Rule 23 Order filed March 27, 2012; Rule 23 Order withdrawn May 22, 2012
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In an action alleging false imprisonment, abuse of process, malicious prosecution and conspiracy, arising from the removal of plaintiff from her home and her transportation to defendant nursing home following the entry of an order appointing defendant agency as her temporary guardian, the trial court‘s dismissal of plaintiff‘s complaint was affirmed, since defendants acted pursuant to a valid temporary guardianship order to protect plaintiff‘s welfare.
Decision Under Review
Appeal from the Circuit Court of Kane County, No. 10-L-232; the Hon. Judith M. Brawka, Judge, presiding.
Judgment Affirmed.
Counsel on Appeal
Daniel
Mary Jo Greene and Stephanie W. Weiner, both of Doherty & Progar, LLC, of Chicago, for appellee Senior Services Associates, Inc.
Elizabeth M. Neidig, of Purcell & Wardrope, Chtrd., and Ami L. DeMarco, of Quintairos, Prieto, Wood & Boyer, P.A., both of Chicago, for appellee Asta Care Center of Elgin.
Peter A. Walsh, Stephen R. Swofford, and John P. Ryan, all of Hinshaw & Culbertson LLP, of Chicago, for appellee Daniel G. Parsons.
Panel
JUSTICE BOWMAN delivered the judgment of the court, with opinion. Justices Burke and Birkett concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiff, Carol M. Farwell, appeals the circuit court‘s dismissal of her complaint against defendants, Senior Services Associates, Inc., Asta Care Center of Elgin, and attorney Daniel G. Parsons. Plaintiff‘s complaint alleged claims of false imprisonment, abuse of process, malicious prosecution, and conspiracy, based on her being removed from her home and transported to Asta Care Center following an April 30, 2008, order that appointed Senior Services temporary guardian of plaintiff. We affirm.
I. BACKGROUND
¶ 2 ¶ 3 On April 29, 2010, plaintiff filed a five-count complaint, alleging the following facts. Plaintiff resided in a home in Hampshire. Prior to April 30, 2008, Senior Services filed a petition for the adjudication of disability and the appointment of a plenary guardian for plaintiff because she was unable to handle her affairs. The petition stated that it was necessary to remove plaintiff from her home and transport her to Asta Care Center in Elgin. Plaintiff alleged that Senior Services never gave her notice of its plans to seek guardianship over her. On April 30, 2008, the trial court made Senior Services plaintiff‘s
¶ 4 Count I alleged false imprisonment against Senior Services. Count II alleged abuse of process against Senior Services, in that its petition was initiated to prevent plaintiff from contesting a petition that sought guardianship of her husband, Robert Farwell. Count III alleged false imprisonment against Asta Care Center, in that it improperly detained plaintiff against her will, depriving her of her liberty. Count IV alleged false imprisonment against Parsons, who was the attorney for Senior Services. The complaint alleged that Parsons never provided plaintiff with notice of Senior Services’ petition, failed to present clear and convincing evidence of her incompetence, and failed to file any type of medical report concerning plaintiff‘s ability to manage her affairs. Count V alleged abuse of process against Parsons, based on much of the same.
¶ 5 On July 22, 2010, Asta Care Center filed a motion to dismiss plaintiff‘s complaint pursuant to
¶ 6 On January 28, 2011, the trial court granted plaintiff leave to file an amended complaint as to Asta Care Center and dismissed, with prejudice, counts I, II, IV, and V of the complaint.
¶ 7 Plaintiff filed her first amended complaint, alleging the following. Count I repleaded false imprisonment against Senior Services; count II repleaded abuse of process against Senior Services; count III alleged malicious prosecution against Senior Services; count IV pleaded civil conspiracy against Senior Services, alleging that Senior Services conspired and agreed with Parsons and Asta Care to maliciously prosecute plaintiff to prevent her from contesting the petition for guardianship of Robert Farwell; count V repleaded false imprisonment against Asta Care Center; count VI alleged civil conspiracy against Asta Care Center; count VII repleaded false imprisonment against Parsons; count VIII repleaded abuse of process against Parsons; count IX alleged malicious prosecution
¶ 8 Defendants again filed motions to dismiss pursuant to
II. ANALYSIS
¶ 9 ¶ 10 A motion to dismiss under
¶ 11 Plaintiff argues that the trial court erred in dismissing her complaint, because the temporary guardianship order was improperly entered, without notice and without a medical report. Plaintiff argues that the order was not a final order and that therefore she could not have appealed it when it was entered. Plaintiff further argues that, because the propriety of the order was not litigated, collateral estoppel does not bar her from raising the issue in this proceeding. Finally, plaintiff argues that the trial court erred because the underlying guardianship action terminated in her favor.
¶ 12 A claim for false imprisonment requires a showing that the plaintiff was restrained or arrested by the defendant and that the defendant acted without having reasonable grounds or probable cause. Reynolds v. Menard, Inc., 365 Ill. App. 3d 812, 819 (2006). Here, defendants mainly argue that they had acted to remove plaintiff from her home under the authority granted to them by the trial court‘s temporary guardianship order. Defendants argue that plaintiff is collaterally estopped from attacking the propriety of the temporary guardianship order in these proceedings. We agree with defendants.
¶ 14 In this case, we consider whether the temporary guardianship order may be considered a final judgment for purposes of application of collateral estoppel, and we find that it may. The temporary guardianship order was entered pursuant to
“[T]he court may appoint a temporary guardian upon a showing of the necessity therefor for the immediate welfare and protection of the alleged disabled person or his estate on such notice and subject to such conditions as the court may prescribe. In determining the necessity for temporary guardianship, the immediate welfare and protection of the alleged disabled person and his or her estate shall be of paramount concern, and the interests of the petitioner, any care provider, or any other party shall not outweigh the interests of the alleged disabled person. The temporary guardian shall have all of the powers and duties of a guardian of the person or of the estate which are specifically enumerated by court order. The court order shall state the actual harm identified by the court that necessitates temporary guardianship. The temporary guardianship shall expire within 60 days after the appointment or whenever a guardian is regularly appointed, whichever occurs first. Except pending the disposition on appeal of an adjudication of disability, no extension shall be granted. However, the ward shall have the right any time after the appointment of a temporary guardian is made to petition the court to revoke the appointment of the temporary guardian.”
755 ILCS 5/11a-4 (West 2008) .
¶ 15 In In re Estate of Sherwood, 56 Ill. App. 2d 334, 337-38 (1965), heirs to the estate of an allegedly incompetent woman objected to the temporary guardian‘s payment of certain estate expenses. The woman died before a permanent guardian hearing took place. Id. at 338. The appellate court stated that the appointment of the temporary guardian occurred in order to prevent the allegedly incompetent woman from dissipating her estate and was done after the court heard the parties. Id. at 339. Further, the appellate court held that the objectors could not argue on appeal that the temporary guardian‘s appointment was improper where no appeal was taken within the 60-day statutory period for appeal. Id. at 340. The appellate court held that the appointment was final and appealable when it was entered and could not be collaterally attacked in an appeal concerning matters wholly separate from the appointment unless there was a showing that the court had lacked jurisdiction to enter the order appointing the guardian. Id. at 341. There was nothing in the record
¶ 16 Likewise in this case, plaintiff never petitioned the trial court to revoke the appointment of the temporary guardian and never sought any type of review of that temporary guardianship order. In fact, the order remained in effect for the entire 60 days. There is nothing in the record to indicate that the trial court lacked jurisdiction to appoint the temporary guardian. Further, like in Sherwood, the record indicates that the requirements of the Probate Act were followed and that the court appointed a temporary guardian because the condition of plaintiff‘s home was dangerous to her health and the health of her husband. See In re Estate of Hasse, 327 Ill. App. 3d 1057, 1060 (2002) (notice requirements for proceedings under section 11a-4 are within trial court‘s discretion and notice requirements for plenary guardianship are inapplicable where imposing such requirements would undermine the clear purpose of the provisions regarding temporary guardians, which is to attend to the immediate needs of the allegedly disabled person). Contrary to plaintiff‘s argument that Senior Services’ withdrawal of its petition for guardianship established that the initial appointment was improper or sought with malicious intentions, the record indicates that the petition was withdrawn because plaintiff agreed to move to another home she owned that was not in a condition posing a threat to her health and safety. Accordingly, the facts that supported the temporary guardianship had changed, leading to an end to the need for a guardian, but that change did not render the temporary guardianship void.
¶ 17 We reject plaintiff‘s reliance on Hurlbert for support of her argument that collateral estoppel should not bar her from raising the issue that the temporary guardianship was improperly obtained. In Hurlbert, the supreme court considered whether the plaintiff could make a malicious prosecution claim that the defendant-policeman lacked probable cause to arrest him for driving under the influence (DUI) where the probable cause issue had been litigated in a statutory summary suspension hearing. Hurlbert, 238 Ill. 2d at 254. The supreme court concluded that collateral estoppel could apply because the same probable cause standard was required in both the malicious prosecution claim and the statutory summary suspension hearing. Id. at 255. However, it declined to bar the malicious prosecution claim, because summary suspension hearings were intended to be swift civil hearings, not full-blown hearings such as in a criminal trial. Id. at 257. In so holding, the supreme court discussed its earlier decision in People v. Moore, 138 Ill. 2d 162 (1990), and noted that its decision in Moore not to apply collateral estoppel in a subsequent driving under the influence prosecution was based in large part on the likelihood that the State, knowing that the results of a summary suspension hearing would be given preclusive effect, would be less likely to rely simply on police reports as evidence, but instead would call witnesses and conduct full-blown hearings. Id. at 167. That effect would defeat the purpose of a swift, administrative resolution to license suspensions. Id. at 169. The supreme court decided in Hurlbert that the same logic applied, and it did not want the preclusive effect of a summary suspension hearing to cause fear in parties such that they would conduct full-blown hearings instead of the swift hearings the statute had intended.
¶ 18 The trial court in this case distinguished the facts of Hurlbert and found it limited to statutory summary suspension hearings. The trial court found that in this case, plaintiff was not seeking a review of facts as they had occurred in the past but rather a review of the procedure used in obtaining the order. We agree. Plaintiff does not allege that defendants had no reason to seek guardianship at the time, but rather she attacks the court‘s decision to appoint the guardian without notice to her and without a medical report. The attack is not on whether there was actual cause for the appointment of the guardian to protect her immediate welfare but rather on whether the court followed required procedures. We therefore find Hurlbert inapplicable to the case at bar.
¶ 19 Having determined that plaintiff may not now attack the trial court‘s temporary guardianship order, we find that the false imprisonment claims cannot survive a
¶ 20 Moving on to plaintiff‘s malicious prosecution claims, such a claim requires a showing of the following elements: (1) the commencement or continuation of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for such proceeding; (4) the presence of malice on the part of the defendant; and (5) damages resulting to the plaintiff. Reynolds, 365 Ill. App. 3d at 818-19. Plaintiff alleged that Senior Services filed its petition to prevent her from contesting the petition seeking guardianship of her husband. She also alleged that the proceeding terminated in her favor, because the petition was eventually withdrawn. Plaintiff alleged that she suffered damages because of mental anguish and public embarrassment. However, because we determined that the temporary guardianship order was properly entered, plaintiff cannot satisfy the third element, that there was no probable cause for the petition being filed. The trial court heard from the parties that plaintiff‘s home was in such disarray that its condition posed a health and safety hazard to her. The trial court agreed and properly appointed a temporary guardian to protect plaintiff‘s immediate welfare. Accordingly, the malicious prosecution claims cannot stand under the facts of this case.
¶ 21 Next, we address plaintiff‘s abuse of process claims. “Abuse of process is defined as the misuse of the legal process to accomplish some purpose outside the scope of the process itself.” Kumar v. Bornstein, 354 Ill. App. 3d 159, 165 (2004). “The *** elements necessary to plead a cause of action for abuse of process are: (1) the existence of an ulterior purpose or motive and (2) some act in the use of legal process not proper in the regular prosecution of the proceedings.” Id. “In order to satisfy the first element, a plaintiff must plead facts that show that the defendant instituted proceedings against him for an improper purpose, such as extortion, intimidation, or embarrassment.” Id. “In order to satisfy the second element, the plaintiff must show that the process was used to accomplish some result that is beyond the purview of the process.” Id. Under the facts alleged in this case, plaintiff‘s claims cannot stand where the petition
¶ 22 Finally, plaintiff‘s civil conspiracy claims cannot stand where there are no underlying intentional torts that defendants could have conspired to perform. Civil conspiracy is an intentional tort defined as a combination of two or more persons for the purpose of accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful means. Reuter v. MasterCard International, Inc., 397 Ill. App. 3d 915, 927 (2010). “To state a claim for civil conspiracy, [the] plaintiff must allege facts establishing both (1) an agreement to accomplish such a goal and (2) a tortious act committed in furtherance of that agreement.” Id. A conspiracy, by nature, is secretive, and therefore the agreement is rarely established by direct proof. Id. at 927-28. Still, the plaintiff must allege sufficient facts to bring his claim, and conclusory allegations that the defendants agreed to achieve some illicit purpose are insufficient to sustain his claim. Id. at 928. Here, defendants acted pursuant to a valid temporary guardianship order and thus there could not have been a conspiracy to act for an unlawful purpose or unlawful means.
¶ 23 Regarding Parsons, we additionally find that plaintiff‘s claims of malicious prosecution and abuse of process are barred on the ground that he was acting as Senior Services’ attorney. “Public policy requires that an attorney, when acting in his professional capacity, be free to advise his client without fear of personal liability to third persons if the advice later proves to be incorrect.” Schott v. Glover, 109 Ill. App. 3d 230, 235 (1982). While this privilege is not absolute, a plaintiff carries the burden to overcome the privilege by pleading malice, meaning that the attorney intended to harm, which is independent of and unrelated to his desire to protect his client. Id. No such allegations substantiate or lead to an inference that Parsons independently maintained a desire to harm plaintiff by filing the petition for guardianship.
III. CONCLUSION
¶ 24 ¶ 25 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 26 Affirmed.